Snooper's Charter: Greater protection for legally privileged communications needed

Government plans to boost surveillance powers have suffered a setback after a committee of MPs and peers voiced fears that the state could use the law to spy on conversations between lawyers and their clients.

In a new report, the all-party joint committee said that while the government was right to bring forward the Draft Investigatory Powers Bill, provisions to prevent the state from intercepting legally privileged communications should be incorporated into the Bill itself, rather than as a separate code of practice.

It was accepted that such codes do not have the same legal force as specific provisions within legislation as those who break them are not liable to civil or criminal proceedings.

The committee also pointed out that codes of practice cannot be amended and so would not be subject to the same level of parliamentary scrutiny as the Bill itself.

The chairman of the joint committee, Lord Murphy of Torfaen, said the Home Office still had a significant amount of work to do before parliament would be confident that the Bill - dubbed the Snooper's Charter - had been fully thought through.

Chancery Lane welcomed the committee's findings. In December, the Law Society called for explicit statutory protection for legal professional privilege in its evidence to the parliamentarians.

The society's president, Jonathan Smithers, said: 'Legal professional privilege is vital to the administration of justice. It protects a client's fundamental right to be candid with their legal adviser without fear that someone is listening in.'

Peter Carter QC, who gave evidence to MPs and peers on behalf of the Bar Council, said the committee was right to recommend that protections be included in the text of the Bill.

'Codes of practice have enabled the state to disregard the well-recognised right to legal privilege on too many occasions. The security services have been forced to acknowledge breaches of legal privilege in a number of embarrassing legal hearings despite their efforts to prevent disclosure of what has amounted to a disregard of our citizens' rights, rights which the state itself invokes on its own behalf,' he added.

'Nobody should listen in to privileged communications between clients and their lawyers, least of all the state. Legal privilege provides the basis for a fair trial. That is why it has endured as a fundamental constitutional right for hundreds of years.'

Carter explained that clients will often hold back from telling the truth when they believe their communications are being surveilled. As a result, it is not possible for a lawyer to properly advise their client, which can affect a defendant's right to a fair trial.

'The only situation in which private communications between lawyer and client should be capable of being spied on is when they are made in furtherance of a criminal purpose - this is known as the iniquity exception,' continued Carter.

'Lawyer client communications should of course be subject to surveillance where they are being used inappropriately, and where intercepting them will give the security services vital information to keep us safe from harm.'

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